if its
possible persuasiveness is not a good reason for ban- settled on a formulation
of the test that forbade punishment for banning hate speech, how about its ability
to stir people to violence? Is that not a sufficient reason to ban it?
The answer in the U.S., rendering to the Supreme Court, is “No,” at least in most
occurrences. The Court has essentially put discourse that would threaten violence
or incite others to violence into four categories.
There is an answer rendering the United States Supreme court stance which is “
No,” for almost all it occurrence. Fundamentally, the court put any discourse that
would cause threaten violence or provoke other to violate into four exeption
categories.
The first is “fighting words,” so called because they are words that are likely to
cause the audience to assault the speaker.
essentially, fighting words as the Court conceives of them are insults delivered
face to face. The category was first announced in 1942 in the case of Chaplinsky v.
New Hampshire, in which Chaplinsky named someone a “goddamned racketeer”
and a “damned Fascist.” The Court has never once in the 70 years following that
case upheld any other conviction for using fighting words. Instead, it has narrowed
that category to the vanishing point.
First, “fighting word,” which is so called because they are likely to push the
audience to assault the speaker. As the court consider the “fighting words,” are
insults conveyed face to face. 1942 was the year when the court generates this
category. The case of Chaplinsky v. New Hampshire, in which Chaplinsky named
another person a “goddamned racketeer” and a “damned Fascist.”
The second category, which is closely related, is the so-called hostile-audience
category. The leading case here is Feiner v. New York, decided in 1951. Feiner
was making a speech on a street corner and a crowd of about 80 persons had
gathered. Some in the audience became agitated and appeared to be on the verge
of attacking Feiner and possibly others in the audience. There were only two
police officers present, and because they did not feel they could control the crowd
if it turned violent, they twice asked Feiner to stop speaking. he refused to do so
and was arrested. he was convicted of disorderly conduct, and the Court upheld his
conviction.
Closly related to the “fighting words,” the second category called “hostileaudience”. Feiner v. New York in 1951 is the primary case that leads to this
category from the court. The case story evolves around the plaintiff, Feigner who
was giving a speech on the street corner in front of approximately 80 persons.
Some one from the audience became nervous and apparently trying to attack
Feiner and some other audience. Two police officer appear to be in the scene and
because they felt that they could not stop handle the situation if it turn to a violent
scene, they asked Feiner to stop. They arrest him after he refused the second
request to stop giving his speech. Consequently, “he was convicted of disorderly
conduct, and the Court upheld his conviction.”
Like the exception to freedom of speech for fighting words, the exception for
hostile audiences is meant to prevent violence. The difference between the two
categories lies in the fact that in cases of hostile audiences, the speaker need not
have insulted the audience, and the audience’s predicted hostility need not be
directed at the speaker. Otherwise, the two exceptions are virtually identical.
Moreover, as with fighting words, the exception for hostile audiences has never
been extended beyond the seminal case. The Court has overturned every
conviction after Feiner’s that was premised on the audience’s becoming hostile,
placing the principal obligation to prevent the violence on the police rather than on
the speaker. So, like the fighting-words exception, the hostile-audience exception
is more theoretical than real.
A third category of exception is that of true threats. If a speaker threatens illegal
violence, that speech is not protected. But as the Court stated in Virginia v. Black,
the speaker, for his threat to be a true threat, must intend to threaten. It is not
enough that someone feel threatened by the speech if there is no such intent.
“True threat” is the third exception category, where the speaker aims an illegal
violence within the speech. It is first initiated when Virginia v. Black,…….
brought to the court. The court indicate that it feeling of threaten is not enough if
there is no violation intention from the speaker.
Some expressions of hate speech as Waldron defines it might function as fighting
words when uttered face to face; some might stir an uncontrollable audience to
violence; and some might be uttered with the intent to threaten violence. Most will
not fall into any of these three categories.
expression of hate speech will fall into “fighting words” category if it was face to
face, some might fall into “hostile-audience” if it provokes the audience to act
violently against the speaker, and some might fall into “True threat” if there was
an intention to violate the audience. Nonetheless, wouldn’t fall to any of those
categories
The final category of speech that can lead to violence, and for that reason is
excepted from freedom of speech, is advocacy of violence. Many of the early
freedom-of-speech cases dealt with advocacy of illegal acts. The Court originally
adopted the “clear and present danger” test for determining when advocacy could
be punished without falling foul of freedom of speech. The Court tweaked that test
substantially in the 1950s to deal with advocacy of revolution by the Communist
Party. Finally, in 1969, in the case of Brandenburg v. Ohio, the Court
advocacy of illegal acts unless “such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action.” The test
raises many questions, such as when lawless action is “imminent,” and how likely
“likely to incite” has to be. The most pertinent question about this test is whether it
requires an intent to incite. The lower courts and most commentators have read
“directed to” as an intent requirement, even though the fighting-words and hostileaudience exceptions do not require that the speaker intend to incite violence. In
2010, however, the Court held, in Holder v. Humanitarian Law Project, that
giving legal advice for the peaceful speech activities of a terrorist organization can
be prohibited as a form of material aid to terrorism, even though those giving the
advice do not intend to promote terrorist acts. That holding may be evidence that
the Court is moving away from a requirement that one intend to produce violence
and toward a requirement that one merely know that one’s speech is likely to
produce it.
If that is indeed what the Court is doing, is it a welcome doctrinal development?
On the plus side, such a change would align the advocacy doctrine with the
fighting-words and hostile- audience doctrines. Mere knowledge that one’s
expression is likely to provoke a violent reaction would be sufficient for excepting
that expression from freedom-of-speech protection. The Court might even change
the exception for threats to square it with these other doctrines by eliminating the
“intent to threat- en” requirement in favor of a “likely to produce fear” requirement. Moreover, beyond doctrinal consistency, such changes would focus on the
real harms of the expressions: the likelihood of violence and intimidation.
desist from speech or from other kinds of expression. Consequently, Muslims, by
reacting violently, will be able to silence criticism. They will have a “heckler’s
veto” over expression they dislike. Only peaceful groups will be subject to being
mocked. It will, of course, sometimes be prudent to refrain from expression that
might stir Muslims to violence. Yale University Press, in publishing a book about
the Danish-cartoons controversy, declined to republish the cartoons, a decision
that it deemed prudent but critics labeled cowardly. But refusing to exercise a right
is one thing, whereas not having that right is a quite different matter. Muzzling
speakers because of the criminal tendencies of others is a major threat to freedom
of expression. For this reason, it is a road we should not go down. If George
Washington could be called an ass, we should surely have the right to call those
who act like asses that.
Let me conclude, however, on a less triumphant note. When one believes one is in
possession of the truth, it is natural to wish to silence those who espouse error,
especially when the truth one possesses is as fundamental as religious truth.
extremist Muslims no doubt fall into this category. For them, eradicating
blasphemy is far more important than freedom of expression. Persuading them to
the contrary cannot be accomplished by political philosophy, but only through a
change of culture or theology.